How the R&D Tax Credit Usually Works for Indie Game Developers

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Another tax season is on and March Madness is coming, along with GDC. You've got less than two months to file your individual tax return, and if you run your studio as a corporation, less than three weeks!

Have you sat down with a tax professional yet, or figured out what to do if you can't afford one? If you have your own studio, plan to start one, or otherwise work for yourself in some capacity then it's really prudent to work with a tax pro if you don't come from a taxation background. You're going from a point-and-click adventure to an MMO, as far as mechanics are concerned.

This is especially true when it comes to research and development (R&D) matters: you have a couple options for how the tax man sees your dev costs. They depend on various factors such as how much income your studio is bringing in, if you're what the Department of Labor calls a non-employer, what kind of game you're making and where the funds are coming from, among others. This piece is going to focus primarily on the R&D Credit option.

What makes me qualified to discuss this? I am an Enrolled Agent (or EA) with about a decade of tax advisory experience, while I focus more on actual dev and professional development for game devs, I'm still active as a tax consultant to indies and trying to bridge the gap between indies and the professional sector. I wrote the very first book all about tax law for indie developers, and I feel that it's time some misconceptions were cleared up about the R&D Credit. There's an expanded explanation of how this credit works towards the end of the book, but you're going to get a nice breakdown for free here. Are you ready for some football?!

First, Don't Shoot the Messenger...

...but chances are you've read a piece on Gamasutra or maybe Accounting Today that really got your hopes up, that you'd get thousands of dollars in your pocket to fund a game with because of this particular tax credit.

If you represent the average indie developer, this is probably not going to be the case.

Why? The R&D Credit is primarily a wage-based credit. A vast majority of indie developers can't afford to pay themselves for an extremely long time, let alone other people as employees they can afford to pay regularly. Even if you're doing pretty well for yourself, chances are you're reliant on contingent labor (contractors) plus what you do yourself.

This alone already nixes most indies from being able to take the credit.

A little Tax 101 you need to know to understand the next part: taking deductions mean that your taxable income gets reduced, while a credit is a dollar-for-dollar reduction of your tax bill.

What you actually earn and spend on dev costs also has to do with whether you'd benefit. This part is a little higher-level than merely being a non-employer or not, because of what *type* of credit the R&D Credit is: it is non-refundable, meaning that you need to have racked up a significant enough tax bill on the personal or corporate level (depending on what entity you've chosen) to really have the amount the credit is worth knocked off your income tax bill, not your total tax bill. So if you're assessed $5,000 in income taxes and the R&D Credit is worth $1,000, then it shaves $1,000 directly off your tax bill. While beneficial, deducting your dev costs could still prove to save you even more money if you're a non-employer like most indes are wont to be.

You can suspend the R&D Credit up to 20 years though, so if you're living the typical hand-to-mouth indie life now, you may not really feel it if you file your taxes claiming the benefit but pushing it forward to a future year if you wind up having a really strong release.

If you're focused more on immediately saving money, just deducting the dev costs may make more sense for you especially if the credit amount doesn't work out to be that much.

What Kinds of Games Qualify for the Credit?

Now, there's a four-part test your game has to meet. I put it in English here:

Does your studio intend to develop a new product or develoment process-- that is, make new games and not just improve old ones?

Technical in nature? (Game development is considered part of computer sciences as far as the law is concerned, so yes.)

Is your studio's activity out to eliminate technological uncertainty, whether it's in terms of feasibility or the uncertainty of the design?

In doing all this, are you following some process of experimentation to overcome the uncertainty?

It's formally called the Research & Experimentation Credit, after all! Game devs are an innovative lot and we're always experimenting with each title, even if it's seemingly a tried and true method. Hence this cryptic-sounding criteria list.

So, let's say you meet all those tests. Projects must be original products where you will own the results and IP. This means that publisher projects and other work-for-hire you do for other studios or non-studio clients will not qualify for the credit, because the IP won't be in your hands.

The same also goes for games that you make under a grant program, such as an NSF student grant or SBIR program. Even if you have a single person giving you money to specially make them a game, such as the practice of receiving a marriage proposal via a personalized RPG, while a really cool idea it unfortunately doesn't qualify for the R&D Credit.

Money spent on updates and revamps to games that you already released also don't qualify, because it has to be for a new game.

Thinking about doing a sequel or a reskin though? Don't worry, so long as it's a NEW game-- not just updating one you already have out-- it will pass the smell test. The IP itself doesn't have to be brand new. Just the title.

How Much is the R&D Credit Usually Worth?

First, there's your eligible costs. As I mentioned, this is a wage-based credit. So this means that you have to have an actual payroll open and correctly declaring your employees, plus yourself as an employee depending on the entity you have. Assuming that's the case, 100% of wages paid to the people who work on the game count, and yours definitely count. Even if you're in a project management kind of capacity and not doing hard dev work, but if you're just doing the marketing then unfortunately your wages wouldn't count.

If you're paying people on a 1099 basis, only 65% of their pay counts.

Supplies-- but not equipment-- counts at 100% as well. This would be things like art supplies, things you use in paper prototyping, hard copies for game design documents and brainstorming sessions. Interestingly, the very devices you use DON'T count-- but if you're renting or leasing a computer or tablet, you can take 100%!

Now, as for the mechanical calculations: the IRS has this document on R&D Credit calcuations that could dwarf the game design document for Red Dead Redemption. Even though I paraphrased pretty concisely in my book, it's still a very lengthy calculation. So to give you the Five Second Movie version, the year you began your studio (officially) factors in as well as the method for figuring the credit (most tax pros will point you to the simplified method.) Because it's predominantly more established studios and really well-funded indies who are most likely to benefit from this credit, that whole wage factor once again, I'll TL;DR it for you: the R&D credit typically averages out to about 14% of your total qualified dev costs but gets more complicated to figure out once you've been in business a while.

Let's just say that this was your first very good year where you had a significant portion of qualified dev costs. If they were $50,000, under the simplified method it'd just be 14% or $7,000. You'd also be able to suspend this $7,000 if you don't owe much in taxes this year and don't think you'd benefit from taking it right now.

An indie developer who is not paying wages to anyone or themselves is not likely to take the R&D Credit. Speaking from my own studio's experience, the benefit we get from the R&D deduction usually far outweighs the credit. The deduction isn't subject to the constraints that the credit is, such as working on publisher projects, games that aren't totally new, etc.

But no matter how you cut it, you can't double-dip. You can only take the credit or the deduction, not both.

What if the Game Bombs at Release?

You can still get the credit or the deduction. You need not be successful to qualify. Hey, that's part of experimentation: if every experiment was a raging success, the world would be pretty boring! At least you can get a pretty sweet tax benefit for it.

State-Level R&D Benefits

Now, you may want to go through claiming with the R&D Credit even if it won't benefit you much on the federal level because you may have a state program that's much more generous. Many state revenue departments employ a "matching principle", meaning that you must claim a benefit on the federal level in order to qualify for the state's program, such as the Earned Income Tax Credit.

Some simply have more generous statutes, others will match your federal R&D Credit dollar-for-dollar and it may even be refundable, which is the kind of mad loot you've read about!

***

If you'd like to learn more about the R&D Credit and other tax issues affecting indie developers and will be in New York prior to GDC, I am teaching a course all about tax law issues for indie developers March 10 at Playcrafting.

I'd also definitely work with a tax professional on this matter, preferably one who has experience with software and tech if not the games industry outright.

Citations for Tax Professionals and Indie Developers Who Wish to Share with a Tax Professional:

1. §174: option to expense all of your development costs
2. Publication 535: Business Expenses
3. §41: R&D credit basics, the four-part test
4. §41(d)(4)(H): you can’t claim the R&D credit for research/experimentation that has been funded by a third party like a grant program or publisher.
5. Fairchild Industries, Inc. v. United States, 71 F.3d 868: Fairchild tried to defend their stance that in order for their research to not be considered funded by a third party and thus eligible for the R&D credit, that they indeed took a risk and had substantial rights to the research’s results. The Court found that Fairchild only got incidental benefits, not substantial rights.
6. §41(b)(2)(D): types of wages that are allowed for the credit, and wages must be defined by §3401, which simply means there has to be an employee-employer relationship. Contingent labor where you contract someone out and give them a 1099 can’t be used at 100% of the cost for the R&D credit.
7. §41(b)(2)(B) and Treasury Regulation §1.41-2(e): only 65% of contractor pay can be used to calculate the credit
8. Form 6765 instructions